Wrongful Termination Claim: Suing the Right Partiesteam
Wrongful termination (also called wrongful dismissal or wrongful discharge) is a complex area of law for employees and employers to navigate. It’s crucial to understand what constitutes wrongful termination and what employees are entitled to under the Employment Standards Act. This article outlines what wrongful termination is, who to file a wrongful termination claim against, and what happens after filing a lawsuit.
Wrongful Termination Claim: What Is A Wrongful Termination?
Wrongful termination is when an employee is terminated from their job, and they do not receive the appropriate notice of termination or pay in lieu of notice. If an employee does not receive the proper notice, they may seek to file a wrongful termination claim.
The amount of notice depends on various factors, including:
- If the employee has an employment contract;
- If the employment contract is enforceable;
- Length of service;
- Character of employment;
- Whether the employee was terminated with or without cause.
Depending on these factors, and whether there was an employment agreement in place, a terminated employee could be entitled to the minimum notice pay outlined in the Employment Standards Act (the “Act”) or the common law notice standard, which could amount to a month per year of service.
Although employers have the right to terminate employees without cause for any reason (except for protected grounds under the Human Rights Code), if the employer fails to provide the employee with sufficient termination entitlements upon their dismissal, the employee would be considered wrongfully terminated.
However, if an employee is terminated for cause, they are not entitled to notice or pay in lieu of notice. The standard to prove termination for cause is extremely high. With this in mind, if you have been terminated for cause but feel that your alleged conduct does not amount to a for-cause termination, then you may have been wrongfully terminated and may choose to file a wrongful termination claim.
Who Can I File A Wrongful Termination Claim Against?
Assuming you are a non-unionized employee, you can file a wrongful termination claim against your employer to try and recover compensation in lieu of notice and other damages you may have incurred in relation to your termination. Filing a lawsuit formally begins the litigation process.
If the amount of damages you are suing for is under $35,000, the lawsuit would need to be brought to the Small Claims Court. For damages greater than $35,000, the lawsuit would need to be filed at the Superior Court.
What Happens After I File A Lawsuit?
Assuming the matter is brought to Superior Court, once the statement of claim is filed, the employer’s lawyer will file their statement of defence. The employee’s lawyer can file a reply to the statement of defence, but it is not mandatory.
Once the pleadings have been filed, the next step of a lawsuit would be to determine if the matter should proceed to mediation or discovery. It is important to note that Toronto, Ottawa and Windsor are mandatory mediation jurisdictions. This means both parties of the lawsuit must attend mediation before proceeding to trial.
There are many steps to a lawsuit in Ontario, and it may seem challenging to navigate this process on your own. Before filing a wrongful termination claim, speaking to an employment lawyer can simplify this process and ensure a beneficial outcome.
- Wrongful Termination Lawyer: When Do I Need One?
- What Situations Create A “Wrongful Dismissal”?
- Wrongful Dismissal Claim: How Much To Ask For
If you are an employer facing a wrongful termination claim against you, or if you are an employee who believes they have been wrongfully terminated in Ontario, our team of experienced wrongful dismissal lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected], and we would be happy to assist.
If you are a small or medium-sized company looking for full-service support with a same-day response, visit our CLO Program page for our strategic solutions.
Disclaimer: This blog is not intended to serve as or should be construed as legal advice and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call (800) 771-7882 or email [email protected]